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T-4266-79
The Queen (Plaintiff)
v.
Air Age Distributors Ltd. (Defendant)
Trial Division, Cattanach J.—Ottawa, January 20, 1981.
Practice Plaintiff seeking order as to whether defendant
can continue to be unrepresented by a solicitor — Defendant presumed to be a corporation — Rule 300(2) requires a corporation to be represented by solicitor — Notice filed by defendant's solicitor to the effect that he was ceasing to act as
such Notice directed to Clerk of the Court and to plaintiffs solicitor — Consideration of application premature and thus adjourned until requirements under Rule 300(7) and Rule 324 are fulfilled — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 11 — Federal Court Rules 2, 300(2),(3),(5),(7), 324.
MOTION pursuant to Rule 324. SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Mark A. Henbury, Calgary, for defendant.
The following are the reasons for judgment and order rendered in English by
CATTANACH J.: The plaintiff by her notice of motion dated at Edmonton, Alberta, January 8, 1981, seeks an order for advice and direction as to whether the defendant to this action can continue to be unrepresented by a solicitor.
There is no specific allegation in the statement of claim that the defendant herein is a corporation and if so by virtue of what jurisdiction that status was conferred. The concluding word of the name of the defendant as recited in the style of cause is the abbreviation of the word "Limited", that is "Ltd." At one time federal legislation provided that a company incorporated under federal juris diction shall have as the concluding word of its corporate name the word "Limited" or its abbreviation. The same was generally true of most provincial legislation in this respect. However this requirement appears to have been amended in many jurisdictions. The point remains that the
logical assumption following from the use of the name of the defendant with the concluding word "Ltd." in the statement of claim and statement of defence and the tacit admission thereby that the defendant is a corporation as well as in the sup porting material to the application herein is that the defendant is a corporation.
Rule 300(2) provides that a body corporate may not begin or carry on a proceeding in this Court otherwise than by an attorney or solicitor. These qualifications are defined in the Rules as a person who is so defined in section 11 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
An exception is made in Rule 300(2) where the provision of any enactment so permits. No such exception appears to be applicable in the present matter.
A statement of defence dated November 6, 1979 to the statement of claim was filed on November 7, 1979. That statement was signed by Mark A. Henbury and is endorsed to the effect that the statement of defence was filed on behalf of the defendant, Air Age Distributors Ltd. "by Mark A. Henbury, Esq., Barrister and Solicitor, Solicitor for the Defendant whose address for service is in care of the said solicitor at 310 Marlborough Professional Building, 624-36th Street N.E., Cal- gary, Alberta, T2A 5H5."
By virtue of Rule 300(3) Mr. Henbury is deemed to be the "solicitor of record" as defined in Rule 2 and he remains as such until a change is effected in the manner provided by either para graph (5) of Rule 300 on the initiative of the party which has not been done or by the attorney or solicitor who has acted by invoking paragraph (7) of Rule 300.
Rule 300(7) reads: Rule 300... .
(7) Where an attorney or solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change in accordance with this rule, the attorney or solicitor may, upon reasonable notice to his former client as well as to the opposite party (the Court will, upon the return of the motion, decide whether the notice given was reasonable in the circumstances), apply to the Court for an order declaring that the attorney or solicitor has ceased to be the attorney or solicitor acting for the party in the proceeding, and the Court may make an order accordingly, but, unless and until the attorney or solicitor serves on every party to the proceeding a copy of the order and files evidence of such service, he shall,
subject to the other provisions of this rule, continue to be considered as the attorney or solicitor on the record of the party.
The marginal note to Rule 300(7) reads: "Application for recognition of having ceased".
On February 1, 1980 the solicitor for the defendant filed a notice dated January 31, 1980 that he "ceases to act" as such.
That instrument bears the notation that it was directed to the Clerk of the Court and to the solicitor for the plaintiff.
That instrument was a mere notice to the per sons to whom it appears to have been directed— nothing more.
It is not an application to the Court for an order declaring that the solicitor for the defendant has ceased to act as such supported by the requisite affidavits including those of service and since no such application for an order was made no order was granted.
Therefore Mark A. Henbury continues to be considered to be the solicitor of record for the defendant until an order issues declaring the con trary to be the case.
Mr. Henbury was so advised upon receipt of the notice of the Deputy Clerk of Process by letter dated February 14, 1980 which the solicitor of record apparently saw fit to ignore.
The present application is made on behalf of the plaintiff pursuant to Rule 324. By virtue of Rule 324 a party who so requests by letter addressed to the Registry may have the application considered upon written representations or upon the consent of the other party without personal appearance. No such letter, representation or consent accom panied the application. Perhaps the supporting affidavit to the application and the notice of motion may be widely construed as "written representation" in light of the facts alleged and established therein.
However when a request is made to have the matter considered without personal appearance a
copy of the written representations and the notice of motion are required to be served on each oppos ing party as well as the letter of request.
There is no evidence by the usual affidavit of service that this has been done.
It can be understood that the plaintiff might have been in a quandary as to the person or persons on whom service should be effected.
But in any event no application shall be con sidered until the persons adverse in interest have had' a reasonable opportunity to make written representations in reply or to apply for an oral hearing of the matter.
In view of these circumstances consideration to the present application is premature.
Because Mr. Henbury continues as the solicitor of record until either the party effectively dis charges him and changes to another solicitor of record under Rule 300(5) or until Mr. Henbury himself has applied to the Court for an order declaring that he has ceased to be the solicitor acting for the defendant it follows that service of this notice of motion shall be served upon the solicitor of record together with all requisite sup porting material.
In my view it is mandatory that service shall be so effected.
Provision is also made in the Rules as to the manner in which service is to be made upon a corporation.
Ex abundanti cautela service should also be effected upon the defendant corporation. The fact that service is effected upon the corporation does not in any way detract from the clear and unequivocal language in Rule 300(2) to the effect that a body corporate may not begin or carry on any proceeding otherwise than by a solicitor unless it can be established that express statutory excep tion exists for the contrary being the case and service upon the corporate defendant is not to be construed as permitting any proceeding to be con ducted on behalf of a corporation other than by a solicitor.
It would also be helpful, when these conditions precedent to the application have been complied with and the application, when renewed, is further supported as indicated herein that representations might also be made as to who should bear the costs of the application including the solicitor of record personally.
ORDER
Consideration of the application herein is pre mature and is accordingly adjourned until the conditions precedent and supporting material indicated herein have been fulfilled and the application renewed.
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